Zvikomborero Murahwi v Pam Golding Properties

The plaintiff, a married father of two children (one with disabilities requiring expensive treatment), decided to sell his immovable property to fund his child's special medical needs. In 2018, he mandated the defendant, a real estate agency, to facilitate the sale. The defendant identified a purchaser, Elizabeth Bore, who purchased the property for USD 190,000. The purchase price was paid to conveyancers on 27 August 2018 and to the defendant on 28 August 2018. Due to liquidity crisis and Reserve Bank of Zimbabwe (RBZ) exchange control requirements, the defendant could not immediately remit the proceeds to the plaintiff's South African bank account. On 30 August 2018, the defendant advised the plaintiff of three options, including having the conveyancers apply to RBZ for remittance. The plaintiff instructed the defendant to transfer the funds to the conveyancers to handle the remittance (11 September 2018). The funds were transferred to the conveyancers on 18 September 2018. RBZ approved the application on 2 November 2018, but the funds were never remitted. The conveyancers repeatedly advised the plaintiff to personally follow up with RBZ and to provide local bank account details, which he did not do until February 2021. The plaintiff sued the defendant in June 2021 for USD 168,127.02, claiming breach of mandate.

• Whether the plaintiff was entitled to a declaratory order that the defendant was indebted to him for the sale proceeds
• Whether the defendant breached its mandate agreement by failing to remit the funds in United States dollars
• When the mandate to the defendant was terminated
• Whether the defendant dispensed with its obligation to remit funds upon being instructed to pay the conveyancers
• Whether the plaintiff had been prejudiced by the defendant's conduct
• Whether the defendant still held money on behalf of the plaintiff
• Whether the defendant was responsible for cancelling the sale agreement
• Alternatively, whether the defendant was liable for contractual damages arising from breach of the agency contract

Both the main claim for a declaratory order and the alternative claim for contractual damages were dismissed. The plaintiff was ordered to pay the defendant's costs on a legal practitioner and client scale (punitive costs).

1. An agent's primary duty is to perform the mandate in accordance with the principal's instructions, including subsequent lawful instructions that may modify or supersede earlier instructions. 2. Where a principal issues a subsequent instruction that effectively removes an obligation from an agent and vests it in another party, and the agent complies with that instruction, the agent's original mandate regarding that specific obligation is terminated. 3. Implied authority flows from express authority to do all necessary and usual means of executing an express instruction. 4. Under the doctrine of privity of contract, only parties to a contract may enforce its terms or seek its cancellation. A third party, even if they drafted the contract, has no legal standing to cancel or enforce it. 5. An agent who complies with the principal's lawful instructions cannot be held liable for breach of mandate when the principal later regrets the instruction given. 6. Courts will not grant declaratory relief where there is neither factual nor legal basis for the declaration sought, particularly where the party seeking relief has been dishonest with the court.

The court made several important observations: 1. On litigant conduct: Courts take a dim view of litigants who are not candid and who withhold vital information or mislead the court. Such litigants are unworthy of the court's protection. The court cited with approval: "People are not allowed to come to court seeking the court's assistance if they are guilty of a lack of probity or honesty." 2. On the unfortunate circumstances: The court noted this was a "classic case of cutting the nose to spite the face" where the plaintiff's hardline stance and refusal to personally follow up with RBZ when repeatedly advised to do so was regrettable, and "a stitch in time would have saved nine." 3. On judicial notice: The court took judicial notice under s24 of the Civil Evidence Act of the liquidity crisis in Zimbabwe leading up to the February 2019 currency policy shift, as this was generally known among reasonably informed people in Zimbabwe. 4. On closing submissions: The court reiterated that closing submissions made at the end of trial on issues not pleaded or canvassed in evidence do not constitute pleadings or evidence on those issues, citing El Elion Investments (Pvt) Ltd v Auction City. 5. On punitive costs: The court observed that while costs on a legal practitioner and client scale are not awarded lightly, they are appropriate where a plaintiff's conduct is reckless, thoughtless, and manifestly inappropriate, particularly where the plaintiff knowingly pursues the wrong party.

This case is significant for establishing principles regarding: (1) the termination of agency mandates through subsequent instructions from the principal; (2) an agent's duty to obey lawful instructions from the principal, including subsequent instructions that may supersede earlier ones; (3) the doctrine of privity of contract preventing third parties (including agents who drafted contracts) from enforcing or cancelling contracts to which they are not parties; (4) the importance of candour and honesty in litigation, with courts willing to impose punitive costs where litigants deliberately mislead the court; and (5) the application of exchange control regulations and the effects of liquidity crises on contractual obligations involving foreign currency remittances. The case also demonstrates judicial notice of economic conditions (liquidity crisis) that were generally known in Zimbabwe during the relevant period.